Page:Introductory Material to the Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol.pdf/146

 Dated January 4-7, 2021 at 53, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM). Put similarly, to prove a violation Section 371’s “defraud” provision, the government must prove that the defendant: (1) agreed with at least one other person to defraud the United States, (2) knowingly participated in the conspiracy with the intent to defraud the United States, and (3) that at least one overt act was taken in furtherance of the conspiracy. See United States v. Dean, 55 F.3d 640, 647 (D.C. Cir. 1995) (citing United States v. Treadwell, 760 F.2d 327, 333 (D.C. Cir. 1985)); see also United States v. Mellen, 158, 393 F.3d 175, 181 (D.C. Cir. 2004). An individual “defrauds” the government for purposes of Section 371 if he “interfere[s] with or obstruct[s] one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest.” Hammerschmidt v. United States, 265 U.S. 182, 188 (1924); see also United States v. Haldeman, 559 F.2d 31, 122 n.255 (D.C. Cir. 1976) (upholding jury verdict on instruction defining “defrauding the United States” as: “depriv[ing] the Government of its right to have the officials of its departments and agencies transact their official business honestly and impartially, free from corruption, fraud, improper and undue influence, dishonesty and obstruction”).

617 Order Re Privilege of Documents Dated January 4-7, 2021 at 54-55, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM).

618 See Order Re Privilege of Documents Dated January 4-7, 2021 at 53, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM). (“An ‘agreement’ between co-conspirators need not be express and can be inferred from the conspirators’ conduct.”).

619 See infra, Chapter 1.

620 Order Re Privilege of Documents Dated January 4-7, 2021 at 55, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM).

621 Order Re Privilege of Documents Dated January 4-7, 2021 at 57, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM).

622 See infra Chapter 2. President Trump’s call with Secretary Raffensperger may have violated several provisions of both Federal and Georgia law. We do not attempt to catalogue all the possible violations here.

623 Order Re Privilege of Documents Dated January 4-7, 2021 at 57, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM).

624 Order Re Privilege of Documents Dated January 4-7, 2021 at 59, Eastman v. Thompson et al., 594 F. Supp. 3d 1156, (C.D. Cal. Mar. 28, 2022) (No. 8:22-cv-99-DOC-DFM).

625 “908. ELEMENTS OF 18 U.S.C. § 1001,” Department of Justice, (last accessed on Dec. 13, 2022), available at https://www.justice.gov/archives/jm/criminal-resource-manual-908-elements-18-usc-1001.

626 The elements of a Section 371 conspiracy are discussed above.

627 As explained in Chapter 5, staffers for Rep. Mike Kelly (R-PA) and Sen. Ron Johnson (R-WI) reached out to Vice President Pence’s director of legislative affairs, apparently seeking to deliver fake certificates on January 6. Documents on file with the Select Committee to Investigate the January 6th Attack on the United States Capitol (Chris Hodgson Production), 00012 (January 6, 2021, text message from Rep. Kelly’s Chief of Staff, Matt Stroia, to Chris Hodgson on January at 8:41 a.m.), 00058 (January 6, 2021, text messages from Senator Johnson’s Chief of Staff, Sean Riley, to Chris Hodgson around 12:37 p.m.).

628 See infra, Chapter 3.

629 18 U.S.C. 1001 (emphasis added).

630 See, e.g., United States v. Bowser, 964 F.3d 26, 31 (D.C. Cir. 2020), cert. denied, 141 S. Ct. 1390 (2021) (“[T]he False Statements Act applies to ‘any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress.’ 18 U.S.C. § 1001(c)(2) (emphasis added).”); United States v. Stone, 394 F. Supp. 3d 1, 10 (D.D.C. 2019).

631 See Select Committee to Investigate the January 6th Attack on the United States Capitol, Business Meeting on the January 6th Investigation, 117th Cong., 2d sess., (Oct. 13, 2022), at 1:14:59-1:15:22 available at https://www.youtube.com/watch?v=IQvuBoLBuC0 (“[President Trump] turned the call over to Mr. Eastman, who then proceeded to talk about the importance of the RNC helping the campaign gather these contingent electors, in case any of the legal challenges that were ongoing changed the result of any of the states.”). 632 18 U.S. Code § 2383.

633 Thompson v. Trump, 590 F. Supp. 3d 46, 115 (D.D.C. 2022).

634 See Ryan Goodman and Josh Asabor, “In Their Own Words: The 43 Republicans’ Explanations of Their Votes Not to Convict Trump in Impeachment Trial,” Just Security (Feb. 15, 2021), available at